Voice of the Free Press: Closing doors on public scrutiny

Jul. 7, 2011

The Vermont attorney general's motion before the state Supreme Court against releasing police search warrant results in the case of the missing Essex couple is one more piece of evidence that portions of state government have yet to embrace the notion of government transparency and accountability as a public good.

The case is about a specific set of documents in a particular case. Yet, the state is using the case to take away the public's right to access a class of documents, a right established by a 2001 lower court ruling.

Vermont's law enforcement establishment is too opaque as it is. The public has access to too little information, especially about how police misconduct is handled. If the recent reports outlining problems at the Vermont Police Academy are an indication, law enforcement needs every bit as much public oversight as any other part of government.

Now, the state is moving to nullify one of the few avenues available for the public to inspect police conduct on the job.

The Free Press made a simple public records request for the warrant returns in mid-June, and Chittenden County State's Attorney T.J. Donovan made a motion in court requesting the documents be sealed. Warrant returns document what police found when they executed the court-authorized search.

Two Superior Court judges, Linda Levitt and James Crucitti, turned down Donovan's request. In one decision, Judge Crucitti wrote, "The court does not believe the state has outlined sufficient reasons to justify sealing of the records on a stay of the order."

Instead of presenting a beefier argument in Superior Court, Donovan has chosen to take his case before the state Supreme Court where the Attorney General's Office, in a motion on behalf of the state's attorney, has introduced the notion that the public has no inherent right to access warrants.

Such zeal to suppress information by any part of government smacks of authoritarianism.

The motion brief filed by Assistant Attorney General John Treadwell reads, "Furthermore, this Court may consider ... 1 V.S.A. S 317(c)(5) when considering whether the public should have access to search warrant materials under the facts presented."

The 1976 exemption to the state public records law covers: "Records dealing with the detection and investigation of crime, including those maintained on any individual or compiled in the course of a criminal or disciplinary investigation by any police or professional licensing agency ..."

The Attorney General's Office has cited the exemption to keep investigative files sealed, even after the case is closed. Attorney General William Sorrell has argued the public has no inherent right to see the files, which often contain information that, if made public, could be damaging to innocent people. That means access to the information is at the discretion of prosecutors.

The move to include warrant material under this exemption would undermine the public access gained under a 2001 ruling that, as Treadwell cites, "found a statutory right of access to the search warrant materials and established standards and a procedure to be followed when the State sought to seal search warrant materials."

Sorrell says Donovan asked his office to handle the case before the Supreme Court. "I think he did so since we litigate most of the public-records issues for the state," Sorrell said, referring to Donovan.

There's no escaping the irony of Sorrell's reference to "public-record issue" considering in almost all cases the state is arguing against public access to government-held information. By seeking to place even more of government beyond public scrutiny, the attorney general once again abets the creeping advance of closed-door government.